Finally, "Getting Serious" about Algal Blooms
Published: Friday, January 6, 2023 12:00 pm
By: Norm Schultz
The boatowners, boating trade groups, environmentalists and others can cheer a landmark consent decree that will serve as a roadmap for federal and state regulators to finally get serious about addressing western Lake Erie’s chronic algal blooms.
This case was brought against the U.S. Environmental Protection Agency by the Environmental Law Policy Center (ELPC) on grounds that the federal agency has failed to live up to the intent of the 1972 Clean Water Act by going soft on Ohio!
As first reported by veteran environmental writer Tom Henry in the Toledo Blade, U.S. District Judge James Carr has authored the eight-page consent decree that’s now officially published in the Federal Register.
“While we believe the timelines in the decree should be tighter as such provisions should have been realistically executed a long time ago,” says Michelle Burke, president of the Lake Erie Marine Trades Association, “we applaud Judge Carr’s action and the prospect that it will finally produce needed corrective actions to protect our lake.”
The order does not specify what kind of rules Ohio will be required to pass along to the agricultural industry and others to reduce the levels of nutrients getting into the Maumee River and other western Lake Erie tributaries. It also doesn’t say if Governor Mike DeWine’s current H2Ohio program for improving water quality statewide is sufficient.
However, it does finally establish a set of clear deadlines and penalties for the Ohio EPA to set limits known as a Total Maximum Daily Load (TMDL) of phosphorus, nitrogen and other nutrients getting into the Maumee River Watershed. Moreover, what the Ohio EPA develops is expected to be the most aggressive TMDL in the country.
Accordingly, case settlement and timetable, albeit labeled still too generous by some, mandates the following:
■ A Dec. 31, 2022, deadline for the Ohio EPA to finish and release for public comment its draft of a proposed TMDL.
■ A June 30, 2023, deadline for the Ohio EPA to finalize the document followed by 30 days for the U.S. EPA to approve or disapprove Ohio’s plan.
■ Five additional months if U.S. EPA determines Ohio’s plan is inadequate. If that happens, the federal government must write and impose its own TMDL within that five-month period.
■ A joint status report from the U.S. EPA and Ohio EPA must be filed with U.S. District Court every six months until the proposed consent decree is terminated.
Consent decrees are agreements between disputing parties and not a verdict against one or another, However, Judge Carr doesn’t mince words when he states that the plaintiffs are to be considered the “prevailing parties.” Further, his court will retain jurisdiction to enforce the terms and conditions of this Consent Decree.
For too long Ohio has balked at being aggressive in dealing with agricultural runoff of phosphorus and nitrogen from farm fertilizers and confined animal feed operations that are the primary cause of chronic summer algae blooms in western Lake Erie for 27 years now!
Even Michigan, encouraged by the Michigan Boating Industries Association (MBIA), declared its portion of western Lake Erie as “impaired” back in 2016, a first step in justifying a TMDL. It took Ohio two more years to finally join Michigan in the obvious. But Ohio EPA continued to resist calls for a Lake Erie TMDL until after this current lawsuit was filed in 2019. Then it reportedly began assembling a draft plan in early 2020.
It’s now late 2022 and we’re still waiting. In view of that, judge Carr’s timeline seems overly generous, but he’s declared loud and clear that one way or another, the ball will be put in play this time.
Reprinted with permission from Soundings Trade Only
tags: Environmental Impact, Lake Erie, Law & Politics
